New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 18, 2010

October 4, 2010

December 13, 2010

January 5, 2011

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 18, 2010

Student

Parents

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 4, 2010

Student

Student

District Representative — DOE

(Via Telephone) — DOE

School (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 13, 2010

Student

Student

(Via Telephone) — Student

(Via Telephone) — Student

School (Via Telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 5,, 2011

Student

Student

(Via Telephone) — Student

(Via Telephone) — Student

District Representative — DOE

By Complaint dated April 10, 2010 (Exh. A), the matter of came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). The Complaint alleged that the Individualized Education Program (IEP) for the Committee on Special Education (CSE) dated June 16, 2009 was invalid and did not offer an appropriate offer of placement and sought tuition funding for at for for 2009-2010. The matter was extended numerous times on joint application to March 21, 2011, as a result of witness availability, of , decision writing, and related issues. No objection was raised in connection to any extension. The record close date was March 21, 2011.

TESTIMONY AND EVIDENCE

,a who teaches a grade class, indicated that has services, education. (21-22)

Her 2009-2010 class for September, 2009 had children, , between and years old. (23) Some were , some were classified with , some were classified as , some had . (23) The classroom had three . (23) Functional levels ranged from level to grade level. (25) They all had different social needs, they mostly got along. (25) One child was very , he had a for support. (50) He would to . (51) One child needed a for . (49)

She used a balanced literacy program: there is a 90 minute reading block where there is word study, think alouds, read alouds, shared reading. (25-26) Overhead projectors, listening centers, a computer were used; there was sand lettering, different types of manipulatives. (26)

The math program is everyday math, a grade curriculum; the class is broken up in groups, a multi-sensory approach is used. (28-29) The students were in extended day reading and math programs, with or students per . (30)

Attentional needs would be met by a chart and daily reminders. (31) There is a “treasure box” where rewards are provided. (31) There is much hands-on material. (31)

There were very in the class; it really was a sort of environment. (32)

She is a little bit familiar with “ .” (31) To deal with this trait, she would keep the classroom in a and very “ .” (33) This would allow her to see that this is a calm environment and hopefully would allow her to see that everyone would be nice to each other. (33) There would be repetition and praise. (71-72) Then hopefully, she would come around to . (33) She helped another student who barely with of the . (70)

The day consists of such activities as copying from the board, writing, social studies, science and specials. (36) Children are mainstreamed during the specials, with about children in the class. (37, 44)

new children entered the classroom during the school year. (48)

Wilson reading instruction is used in the classroom. (57) She has not been formally trained in Wilson instruction. (57)

There is whole group instruction, and then the instruction is broken into groups as led by the and the s. (62-65)

The classroom largely spoke English in the class, sometimes . (68)

All the children in the class were highly distractible. (72)

She does not know the qualifications of the classroom . (73)

, a school , appeared at the CSE meeting. (78) They reviewed teacher reports, a report, there was no medical. (78) She remembers that had some academic delays, was beginning to recognize sight words and CVC words, was having trouble with decoding. (79) These were not significant delays. (79) There were social and “going on,” there was selective . (79) Reports were that she has progressed a little bit, that she was a little bit louder when previously she was to the teachers at all. (80)

At the review, the and the participated by phone. (80) Everyone had copies of all the materials and had an opportunity to participate in the review. (80-81)

She assumes the witnesses were provided this by the school. (99) The was not there the entire meeting. (96) By the time the participated, Ms. from was not there. (97) The called after Ms. left; the parties had thought the meeting was over. (97)

A class was recommended because the child was grade level and has significant , including responding to , responding to her . (82, 87) This was recommended because she was making progress in her current class, which is a small class. (102) The parent expressed concern about not being cooperative with homework. (84) Management needs were a structured classroom, she needs information to be explained and clarified, she needs to be refocused, she needs repetition. (86)

The wouldn’t normally be recommended for a child who was not significantly below level. (102)

The Individualized Education Program (IEP) was prepared after the meeting. (107)

A ( ) was a guide for the , it is recommended when with learning.

(114) Usually a functional analysis is recommended; no functional analysis was conducted for this student. (115)

They did not explore why she was to and in class other than get an explanation from the teacher. (116) There is no core reason for a student with ; research indicates that it can from , there may be and - . (117) They didn’t find out the basis for it, and neither did the or that was seeing her on a regular basis. (118)

Goals relate to social relationships, her ability to share in conversation, her ability to have with others. (118-119) These didn’t specifically get connected to , but issues with are addressed within the particular group and through the use of a . (119-121)

The student had . (117)

The fact that she is totally open to at suggests she has while at school.

(126) The management needs should be able to address these issues. (126)

Goals were from teacher comments. (89) A was developed from descriptions of within the classroom setting. (88-89) A ( ) was not conducted. (89)

, of , described the as classes within a variety of schools. (136-137) A majority of have their Masters in Special Education. (138)

The classroom up to students, it was a . (140) There was a who taught her and studies, Ms. . (140-141) and were her secular studies . (141) There was a child with a in the classroom, requiring a . (141)

She had twice a week for 45 minutes, twice a week. (146)

These were provided by the Department of Education (DOE) through an agency. (146)

A on from through is omitted from the schedule. (149)

Children work on reading, vocabulary, writing, and basic grammar. (149) This is unrelated to matters. (149)

has been diagnosed with , ( ), . (150) She has high which itself in the selective and in her to working. (150-151) She was , , would up easily. (151) She had decoding skills, reading comprehension skills, was in writing and math, both in terms of computation and problem solving. (151) She has with higher order thinking skills, she tended to work slowly. (151) She would if the work was too . (151) She had real expressing herself through . (151) She used other means to express herself. (151) When she did , there were with her . (151) Children had understanding her. (152)

Teachers provided a lot of extra wait time for her responses and tried not to “ her ” at all. (152) There were a lot of visual supports, frequent breaks, she had a lot of prompting. (152)

Lessons were broken down by steps. (152) There was much one-on-one attention to get her through the process. (152)

To address , the teachers were both very careful to accept any form of expression, be in , , using odd voices. (152) There was an individual used in the classroom. (153) Teachers worked closely with , the , who was and giving her a social skills group. (153)

She was given a great deal of individual , direction, supports. (153) She made academic progress and social progress; she made friends in the class. (153-154) The children embraced , who learned better strategies for being . (154) She was mainstreamed for part of the day. (154) Her seemed to subside somewhat. (154)

A provided a one week social training for the class. (156) This is included as part of . (156) Other services and are provided through the DOE. (156) was also provided by Ms. . (157)

There were about students in the school, which is the . (160)

students were , were , was other , and was . (162) There were no in the class. (162) was the most challenged student. (163) On rare occasions, she would sometimes get out of her , into a and not want to work.

(163) She could become , the away. (163)

They had a , and also they had work with them on techniques when she gets or . (164) They would also take her out of the and back. (164) The process could take up to an hour after a “ .” (165) They sat down and determined the to be addressed; this might not be called an . (166)

She was given an opportunity to participate in the CSE meeting. (173) She was told that the students in the proposed class were much than the children at the class. (174) , Ms. were not participating while the was participating.

(186) The parent agreed to continue the meeting this fashion. (188)

It would be more difficult for to learn a given that she has language delays. (175-176) They learn the in the . (176)

The school was created by a consortium of schools that included ; these schools refer the students to their program. The classes are in the schools. (178) The teacher and of class are employees of , which is paid by . (179-180)

did observations of and guided the teachers in their plan of the child. (187) She initiated a poster in the room based on relaxation techniques to teach when she would get . (187)

, at , works with Ms. to run the school and supervises the English language staff and curriculum. (192-193) She observed once or twice a week; her teacher was , who is certified in general education and special education. (195) There was an in the class named Ms. , and a “ ” named who worked with a child with a . (196-197) The would work on students 1:1, work in small groups with the children. (196) She was in a Master’s for and . (196)

There were a of children in the class, with and , one classified as , classified as , and student. (197-198) The reading levels ranged from grade equivalent to grade equivalent in decoding, grade equivalent to grade equivalent in reading comprehension. (198) is between the and grade level in decoding. (198) In math, was the student. (198) Levels went up to for computation, to for word problems. (199)

Her primary issue is her . (199) This is closely associated with , and they had to be very careful in with her. (199) Otherwise, she has , expressive and receptive language issues, issues, she would sometimes when she did speak. (199) She has decoding and comprehension skills. (199) In math, she did not have “automaticity” with number facts, and had particular problems with word problems. (200) There were handwriting issues, she was resistant to inventive spelling, she didn’t want to write. (200)

They figured out strategies for her with writing, including “word boxes;” by the end of the year, she could write five sentences. (200)

To address decoding issues, they would break down the skills; a foundation was built by playing games with her so that they would be able to engage her. (201) When she became comfortable with the phonetics, they were able to bring her to the text. (201) She was not able to decode multi-syllabic words. (201) They worked on context clues to “get around” this . (201)

To address comprehension issues, which were because she lacks higher order thinking skills, they used a lot of pictures and visuals. (202) She would sometimes answer with drawing, which was okay because they did not want to her . (202)

With math, she had trouble with multi-step problems and the reading portion of the problem. (202) They helped her with a highlighter, and they did modeling for her. (202)

In general, they tried to make the skills interesting so that she could buy into it; they would make up entertaining story problems for her to solve. (203)

With respect to social issues, they clearly broke down the information, they always checked into her understanding, she was never put into a threatening situation where she would shut down. (204) There were opportunities for movement to address the . (204) They never told her to ; they were instructed to do this by Ms. . (205) Then, she would really . (205) She ended up getting along with the other children in the class. (205) They needed to make sure she trusted them. (219) They needed to present curriculum in a - form to get her to participate, such as games, puzzles, magic.

(219) She was therefore available for academics. (219)

She was in her own reading group. (205) She needed one to one instruction in this group so she was working with a basal reader with a multi-sensory approach both in terms of decoding and comprehension. (206) Sometimes, this was with the , other times with the . (206)

She advanced three “modules” in her basal reader, she completed the “Explode the Code” program, she was able to read longer texts without fatiguing. (220) She learned a great amount of sight words. (221)

In math, she was in a group with children and she worked in the grade math textbook. (206) The work was modified, and there was a lot of teacher made material used. (206)

She was working at the beginning grade level. (207) They taught her computation skills, they worked with games and visuals. (220)

For writing, they used the which starts with picture cues and teaching sentence structure and then moves to writing one sentence, two sentences. (208) She had lot of issues. (220) She had issues, she didn’t like to write. (220) She refused to do inventive spelling. (220) Word boxes helped her spell the targeted words, then they built paragraphs. (220) By the end of the year, she was able to write a paragraph. (221)

Multi-sensory instruction means working on auditory, visual and tactile activities.

(208) They used sandpaper, a Smart Board, shaving cream. (208)

She had her own modification program, in addition to one for the class. (209) The teacher gave the student “I Can” if they worked independently and provided other positive reinforcers, constantly changing the program constantly to keep the children engaged. (210) own targeted certain , such as getting work done, focus. (210) They tried to decrease the amount of . (210) For this also, the plan kept changing to keep her engaged. (210)

A social skills program was also implemented by weekly. (211)

Schedule includes daily , , history, social skills, and , recess, , writing and grammar, lunch, specials, ELA, spelling, grammar, math, services, science, , social studies, library. (215) There are opportunities for mainstreaming into the specialties and other subjects. (216) Someone from would go with her to the mainstream class. (217) She would attend these classes with another grader. (218)

has very social skills, and might not be able to handle so many in the classroom. (223) She needs typical role models. (223)

She was the child in the class, ranging from to or so years. (224) There were no challenged students, including the child with . (225) This child has high functioning . (233)

An was not made for ; the plan was based upon the observation, ’s observation and possibly in collaboration with Ms. or herself. (227)

Sometimes was in class. (228)

had more in the . (229)

compares herself to other students and would really and would .

(232) She is the functioning student in the class. (232) They had to work one-onone with her to get her to learn. (232)

When she is taken out for and , it is made up during the daytime; there is always downtime to be found. (236-237)

A special class of 12:1:1 would meet her needs. (238)

Sarah ,a , is the staff at . (242) She has seen in for two years, she has worked with her class in terms of , , observations, management. (243) For in 2009-2010, she was her twice a week individually and once a week in a social skills group. (244)

She presented with , which is social . (246) If she was about a change of schedule, she would respond with and also and not work. (246) She could , and needed to be . (246)

To address this, they modified work, they did not ask her to in class at all, they gave her a lot of - instruction, picture cues. (249-250)

In group, they would use the Second Step social skills program, giving alternatives to . (247) It requires the student to identify feelings, state antecedents for , strategies for responses. (247) She did well with this program. (248)

Some interventions worked, some didn’t. (251)

When she sees other learning and she is not learning, this increases her .

(253) She will then withdraw into herself and the kick in. (253) She has to be an active learner in the class. (253)

She tends to those who are similar; she is and and gets with .

(254) If she only has an opportunity to socialize with other in the class, it will be very for her. (255)

The of the District does not mention and seems like it is about a different child. (256) The goal of waiting for direction to be explained before beginning her work is not attainable right now. (256)

As a therapist, she never shows that she is pleased when speaks in a higher voice. She also never shows she is displeased when is speaking in a lower voice. (257) All the literature on indicates that there shouldn’t be interplay between the and the child. (257)

She would benefit from in a group of three, but she didn’t have a group for her. (272)

Learning a second language could have caused her to be more in the morning, but generally speaking the literature indicates that as the day progresses, the lessens. (274)

There are children in the class who , needed extra prompts; for others a specific subject matter was problematic and they needed incentives. (276) There was a range of acting out in the class, including a child who would become physically ; this child had a . (277) Most of the was directed toward the . (277)

, of , indicated that provides related services through the DOE; if the services were not provided by the DOE, then they would provide the services. (289-290) Tuition was $ for the year. (294) Parents have not made any payments on this contract. (295) If the bill is not paid, they can initiate collection proceedings or remove the child from the program. (296)

The parent testified that she is a - and that her does not work. (305) She has children, of which with her. (305)

A at in February, 2009 diagnosed as having , ( ), . (310)

At the CSE review of June, 2009, she attended with , a parent member, ’s teacher by phone, by phone, a general education teacher. (311) She did not receive documents from the CSE at the meeting. (311) They discussed ’s goals at the meeting. (311)

After the review, she sent letters to the DOE in response to the placement offer and did not get a response. (314)

She visited the placement but the children were not in the classroom; she spoke to the teacher who said she would address selective by letting paint. (315) She was also told that there was a in the class who spoke in the class, which she felt was not good for . (316) She wrote the District a letter, they responded, and she wrote them a second time. (317) Class profile information was not provided to her. (318)

was supportive of selective ; the all- classroom was helpful to her also. (319) She wasn’t able to read in the beginning of the year, and she did at the end of the year. (319) Her math skills got stronger, she was instead of . (320)

Her combined gross income is about per year. (321)

She was given an opportunity to participate in the meeting. (327) She agrees that needs a small class with , and . (328) She agreed with the goals. (328) She was concerned about whether she could satisfy the goals. (328)

Evidence includes the class profile for the proposed class at with Ms. , which indicated children with a reading level of to and a math level of to (Exh. 3) Oral-expressive skills are below average for three of the , receptive language is below average for four of the , and written skills are below average for of the . are deemed to have below average . Two have lower intellectual functioning. One has below average . have social needs that require a .

A document (Exh. 6) entitled Review Meeting Questions indicates that the child speaks at home and outside.

A document entitled Conference Agenda Sheet indicates that the sees a lot of progress with writing. (Exh. 8)

The teacher report dated 6/8/09 indicates that identifies letters, is inconsistent with CVC words, is able to comprehend simple stories, reverses letters. (Exh. 9) She is able to add and subtract the numbers 1-12. She is able to tell time to the half hour and is learning to count by 5s through 25, 2s through 30. She is able to write 1-

2 sentences with CVC words. She is motivated but will often impulsively complete an assignment; a addresses this. She can be very fidgety, she benefits from pictures and following routines, she has difficulty with directions. Her often holds her back, it is often difficult to understand when is not able to respond appropriately.

An observation indicates that is highly but responds to teacher refocusing. (Exh. 10)

A report indicates that it takes her a long time to establish trust/rapport. (Exh. 11)

The IEP dated 6/16/09 included teacher estimates for academic levels. (Exh. G) Academic

Management needs are listed as a structured class with clear expectations and limits, refocusing, repetition, reteaching, clarifications, graphic organizers, math charts/manipulatives, visual/verbal prompts, encouragement, reassurance, positive reinforcement.

For Social/Emotional Performance, it is indicated that acts as an impediment. Needs are listed as refocusing, verbal/visual prompts, encouragement, reassurance, and positive reinforcement. A social and emotional goal relates to gaining the attention of peers. Goals also relate to verbal expressive language and pragmatic language.

An attached indicates strategies of modification checklists, tangible rewards, privileges, verbal praise and - would change the child’s , careless , including whispering and her tiring easily.

FINDINGS AND DECISION

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

The District may be required to pay for educational services obtained for a student by a student's parent if the services offered by the District are inadequate or inappropriate ("first criterion,") the services selected by the parent are appropriate ("second criterion"), and equitable considerations support the parent's claim ("third criterion"), even if the private school in which the parents have placed the child is unapproved. School Committee of the Town of Burlington v. Dep't of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).

On the first criterion, the District should show that it offered parents a free appropriate public education (FAPE). A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the Individuals with Disabilities Education Act (IDEA), and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2].

The parents allege in their Complaint that the student’s IEP did not fully and accurately reflect the student’s current levels of performance and need. The parents’ brief cites the federal and state regulations which require that the CSE team consider the results of the initial or most recent evaluations of the child. 34 CFR Sect. 300.324(a)(iii), 300.305(a); 8 NYCRR Sect. 200.4(f)(1)(iii). The regulations indicate that if the team determines that no additional evaluative data is needed, the District should then notify the parents with the reasons for this determination and give the parents a right to request an assessment. 34 CFR Sect. 300.305(d).

The record reveals that there no evaluative data was reviewed by the CSE, which relied exclusively on teacher and provider reports. There is no IQ testing reported on the IEP, and there is no achievement testing in the IEP. Moreover, there is no speech and language testing reported in the IEP, although this student has significant issues relating to expressive speech. Additionally, no testing relating to social-emotional issues was reviewed by the CSE, although this student presents with significant issues relating to . Case law indicates that CSEs should not rely exclusively on teacher and provider reports. Application of a Child with a Disability, Appeal No. 02-041 (lack of objective evaluative data resulted in finding of FAPE denial on reimbursement claim); see also Application of a Child with a Disability, Appeal No. 05-131 (IEP relied on teacher progress reports and report cards; IEP held to amount to a denial of FAPE); Application of a Child with a Disability, Appeal No. 05-025 (where no evaluative data or standardized test scores on IEP and no testimony about specific testing conducted, IEP ruled invalid).

A review of the IEP also indicates that the IEP does not sufficiently address the child’s needs, particularly in regard to . While selective is mentioned in the IEP, the IEP’s social/emotional management needs section provides only one sentence’s worth of : refocusing, verbal/visual prompts, encouragement, reassurance, and positive reinforcement. The testimony at the hearing made clear that needs require more significant and detailed interventions than those listed. The school witnesses indicated that suffers from and requires specific to insure that she is in class. Teachers should never ask to speak louder in class. Teachers should present curriculum in a - form to get her to participate. Further, teachers should accept any form of expression, be in , , using . Teachers should also provide extra wait time for responses, provide her with frequent breaks, break her lessons down by steps, provide her with one-on-one attention to get her through the process. Compare Application of the Department of Education, Appeal No. 08-045 (DOE program upheld by SRO for child with where neuropsychological evaluation reviewed, IEP contained specific interventions including opportunities to respond non-verbally, teacher lead-in to facilitate responding).

The District did provide a basic for this student. However, the provides only that the student should receive verbal praise, - , and a . Nowhere on the does it mention that has or that ’s is the overriding concern in this regard. There is no discussion of what to do if got in class, as she is reported to get on certain occasions. There is also no discussion of changing the rewards as is suggested for . Moreover, the IEP does not indicate that the should be modified while is in class and attending school.

Finally, in regard to the placement in question, the testimony reveals that the teacher in question was only a “little bit” familiar with . She would keep the classroom in a and very “ ,” but there are no clear indications that the teacher would react to with more specific . As a result of the foregoing, the child was denied a FAPE for the 2010-2011 school year. The parents prevail on the first criterion.

On the second criterion, the test for a parents’ placement is “not perfection.” M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 (2d Cir. 2000). The inquiry should be focused on whether the placement is an appropriate setting that provides specially designed services to address the student’s special education needs. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007).

special education needs relate to selective , , opposition , , decoding, reading comprehension, writing, math, higher order thinking skills. The testimony and evidence indicate that the most acute need relates to ,a of which causes to be unable to normally in class. The record indicates that the program has implemented significant to address and , including being careful to accept any form of expression. Per , who suggested that she has researched , the teachers were careful not to ask to , which an response. An individual was developed by Ms. with constantly changing reinforcers, targeting particular forms of . was also given extra wait time for responses, frequent breaks, visual supports, lessons broken into steps, one-to-one attention, relaxation techniques, opportunities for movement. A social skills class was provided. was contained within the classroom, and there is testimony that made social and emotional progress during the year.

Academically, she was provided with multi-sensory instruction, games were used, visuals were used, curriculum was provided in non-verbal form. also received oneto-one instruction in reading and dyad instruction in math. The school generally tried to make skills seem “interesting” so that would be engaged and would not resist. The result of all these was that advanced by being able to read longer texts, learned a significant amount of sight words, was able to write a paragraph by the end of the year, and started to communicate better verbally.

The District indicates that related services were provided at the behest of the District and that the program should therefore be deemed inappropriate. However, in my view, where Districts provide related services to students in private schools, this should not be the basis for the denial of Carter-based claims. It should be underscored that parents need not show that their placement provides every special service necessary to maximize the student's potential. Frank G. v. Bd. of Educ., 459 F.3d 356, 364-365 (2d Cir. 2006). The Circuit stated in Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007)):

To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

Cf. G.R. v. New York City Department of Education, 53 IDELR 9 (S.D.N.Y. 2009)(school did not provide child with speech and language therapy, which would have been appropriate for student; reimbursement ordered, reversing SRO; speech was only one area where the student had deficiencies); Application of the Board of Education of the Kingston City School District, Appeal No. 09-047 (no speech provided by summer program, and District had recommended speech therapy; parental placement deemed appropriate).

The District also argues that the program provides language instruction, which is not appropriate for a child with language issues. While I agree that the language instruction might not be ideal for this student, I have not found any case law denying reimbursement/ payment on this basis. On the contrary, there is a significant body of case law where parents of children with language issues win reimbursement/payment awards for schools that provide instruction. Application of the New York City Department of Education, Appeal No. 05-074 ( study); Application of a Child with a Disability, Appeal No. 04-073 ( ); Application of a Child with a Disability, Appeal No. 01-102 ( ).

In sum, the parents have shown that the program is designed to meet ’s special education needs. Accordingly, the parents prevail on the second criterion.

On the third criterion, the IDEA allows that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. Sect. 1412(a)(10)(C)(iii). With respect to a parent’s obligation to raise the appropriateness of an IEP in a timely manner, the IDEA provides that tuition reimbursement may be denied or reduced, if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. Sects. 1412(a)(10)(C)(iii)(I), 1412(a)(10)(C)(iv)(IV). Under 20 U.S.C. Sect. 1412(a)(10)(C)(iii), a denial or reduction in reimbursement is discretionary. Application of a Child with a Disability, Appeal No. 04-071.

The District’s primary argument here relates to the fact that the parents here has not made payments to the school in question and are requesting direct payment. However, the decision of in Connors v. Mills, 29 IDELR 946 (N.D.N.Y. 1998), expands on Burlington in allowing for tuition payment in circumstances where a claimant cannot "front" money to the school first. stated that "(i)t simply cannot be the case that an act designed to grant "all" disabled children access to needed services would undermine that very goal by making such access dependent upon a financial situation." Id. at 951. The reasoning of has recently been expanded upon and approved in a thorough and well reasoned decision by United States in Mr. and Mrs. A v. NYC Dep’t of Educ., 09 Civ. 5097 (S.D.N.Y.) (February 1, 2011), who noted that the legislative history of the IDEA specifically contemplates protection of low income individuals and ensures universal access to special education services.

A review of the record indicates that the parent attended CSE meetings, responded to CSE placement offers, visited recommended placements, and generally cooperated with the District. It is clear from the record that the parents gave the District a fair opportunity to create a program for the child. There is nothing in the record to suggest that the parents failed to comply with any directive from the District or failed to respond to phone calls from the District. The parents prevail on the third criterion and are awarded payment to for 2009-2010. Dated: March 21, 2011

, ESQ

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT DESCRIPTION

A Corrected Hearing Request, 5/24/10, 3 pages B DOE Answer, 6/3/10, 3 pages C Letter from Parent, 2 pages D Letter from Parent, 4 pages E Letter from Parent, 3 pages F IEP, 7/17/08, 16 pages G IEP, 6/16/09, 18 pages H Teacher Report, 4/20/10, 4 pages I 1040 Form, 3/10/10 2 pages J Letter to , 2 pages K Affidavit from , 08/27/2010, 1 page L Tuition Contract and Fees for 2009-2010, 08/20/2009, 2 pages M Class Schedule 2009-2010, 1 page N Attendance Record, undated 1 page O Tax Returns 2008, 2 pages P Online Document Relating to Program, 12/27/10, 8 pages

DEPARTMENT OF EDUCATION DESCRIPTION

1 Notice of Scheduled Resolution, 5/26/10, 4 pages 3 Class Profile, dated 6/24/10 3, pages 4 Physical Exam Form, dated 6/22/09, 2 pages 6 Notice of IEP Meeting Member Excusal Request, 6/16/091, page, 7 Review Meeting Questions, 6/16/09, 6 pages 8 Conference Agenda Sheet, 3 pages, 6/16/09 9 Teacher Report, 6/8/09 4, pages 10 Observation, 6/8/09, 2 pages 11 Report, 6/16/09, 2 pages 12 CSE Meeting, 1 page, dated 5/13/09